K.P.A. Manokaran vs A. Subbulakshmi

G. Rajasuria, J.—The Civil Revision Petition has been filed to get set aside the order dated 09.11.2012 passed in I.A. No. 442 of 2012 in

O.S. No. 393 of 2010 by the learned Principal Subordinate Judge, Dindigul. Heard both sides.

The learned Counsel for the revision petitioner would echo the cri de coeur and heart burns of his client which could succinctly and precisely be

set out thus:

(i) The plaintiff filed the suit seeking the following relief:

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(Extracted as such)

(ii) The defendant filed the written statement. The issues were framed and the trial is pending. During the pendency of the trial, P.Ws 1 to 3 were

examined in chief and also cross-examined. At this stage, the plaintiff did choose to file the said I.A. in getting the plaint amended, so as to get

incorporated the following proposed amendments:

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(iii) The counter affidavit was filed by the contesting defendant. After hearing both sides, the lower Court dismissed the application.

Being aggrieved by and dissatisfied with the same, this Civil Revision Petition has been focussed on various grounds.

The learned Counsel for the plaintiff would point out that already regarding the first item of proposed amendment, is concerned for getting the

cancellation deed declared as null and void, there are already sufficient averments in the plaint and owing to over sight alone, a prayer for getting

the cancellation deed null and void was not incorporated in the plaint and such innocuous amendment will not in any way prejudice the defendant.

So far the other items of proposed amendments are concerned, the learned Counsel for the revision petitioner in all fairness would submit that he

is not pressing in this revision petition for getting those proposed amendments allowed, as those are not necessary for the adjudication.

Per contra, the learned Counsel for the defendant would vehemently oppose the move for getting the said prayer, to get the cancellation deed

declared as null and void on the main ground that there was no due diligence on the part of the plaintiff in seeking such amendment, after

commencement of the trial and that amendment of this nature should not be encouraged. Here the suit was filed as early as in the year 2010,

whereas I.A. for amendment was filed only when the trial was half way through and in fact, earlier the plaint was also got amended. Even at that

time, the plaintiff was not diligent enough in getting such amendments incorporated. Accordingly, he would pray for dismissal of this Civil Revision

Petition.

The point for consideration is that as to whether the first item of proposed amendment as found set out supra, could be allowed or not? The

Point:

I would like to fumigate my mind with the decision of the Honourable Apex Court in State of Madhya Pradesh Vs. Union of India (UOI) and

Another, cited by the learned Counsel for the respondent/defendant and an excerpt from it, would run thus:

Finally, the original plaint proceeds that the exercise of power by the Central Government by passing the impugned Notifications dated

02.11.2004 and 04.11.2004 under Sections 58(3) and 58(4) of the MPR Act was arbitrary, unjust and unfair and had resulted in serious

anomalies in the apportionment of assets and liabilities. In our view, after praying for such relief, if the amendment as sought for by the plaintiff is

allowed and the plaintiff is permitted to challenge the vires of the said provisions, then the very basis on which the plaintiff is claiming its right to

apportionment of assets, rights and liabilities of the undivided Board will cease to be in existence and the entire suit of the plaintiff will be rendered

infructuous.

Moreover, it is settled principle of law that leave to amend will be refused if it introduces a totally different, new and inconsistent case or challenges

the fundamental character of the suit.

He would also place reliance on the decision of this Court in J.R. Arun Kumar and Others Vs. K. Boopalan, and an excerpt from it would run

thus:

In the written statement filed in O.S. No. 4312/2007, the defendants concerned not only denied the title of the plaintiff to the suit schedule

properties but also categorically offered that the first defendant and his two sons are the joint owners of the suit schedule property and in that

capacity, they entered into a sale agreement with the second defendant. As some dispute arose between them, the second defendant filed a civil

suit in C.S. NO. 196 of 2004 and the same was decreed on compromise. Thereafter, the nominee of the second defendant/the plaintiff in C.S. No.

196/2004 by name M. Kangeyan who is none other than the proposed 6th defendant in I.A. No. 6547/2009 paid the sale consideration and

purchased the property for a valuable consideration vide Sale Deed dated 11.07.2007 which is registered as Doc. No. 6435/2007 on the file of

SRO, Sembiam. From the above, it is very clear that in the bare injunction suit filed by the plaintiff claiming title and to protect his possession, a

written statement has been filed denying the title of the plaintiff and claiming the title by the first defendant and also the subsequent sale made by

them to one Kangeyan. The sale deed No. 6435/2007 in the Registrar''s office and the date of the sale deed were clearly mentioned in the written

statement itself.

Therefore, it cannot be said that all these facts came to the light later on i.e., after the commencement of the trial as the written statement was filed

in the year 2007 itself. If only the plaintiff has shown some diligence, definitely he would have raised all these things by way of a suitable

amendment application before the commencement of trail itself and therefore, I find the due diligence shown on the title was to maintain this

application after the commencement of trial. This conclusion of mine is further strengthened by the fact that the very same plaintiff filed a similar

bare injunction suit to protect his possession against Thiru Kangeyan (the proposed 6th defendant in I.A. No. 6547/2007 in O.S. No.

4312/2007). In that O.S. No. 4312/2007 also, the plaintiff averred in the plaint that the said Kangeyan is trying to interfere with his possession and

therefore, that should be protected.

The plaintiff also referred to the pending previous suit i.e., in O.S. No. 4312/2007. The said Kangeyan, the sole defendant in O.S. No. 4312/2007

filed a written statement in August 2007, wherein also, the title of the plaintiff was clearly denied and the ownership of the defendant was clearly

putforth on the basis of the very same document i.e. Doc. No. 6435/2007 dated 11.07.2007 on the file of SRO, Sembian.

From the written statement filed in both the suits viz., O.S. No. 4312/2007 and O.S. No. 4689/2007, the inescapable conclusion that could be

arrived at is that in the year 2007 itself the plaintiff was put on notice that his title was stoutly denied and the title of Kangeyan was very much

protected on the basis of the Doc. No. 6435/2007 dated 11.07.2007 on the file of SRO, Sembiam.

A mere running of the eye over the aforesaid precedents would exemplify and demonstrate, portray and parody that if the plaintiff fails to show

his due diligence in getting the plaint amended at the earliest point of time, then such amendments shall not be allowed as a matter of course.

However, I would like to refer to the following decisions of the Honourable Apex Court:

(i) Vidyabai and Others Vs. Padmalatha and Another, .

(ii) Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) Vs. Ramesh Chander and Others, .

A poring over and perusal of those precedents would exemplify and demonstrate, highlight and spotlight the fact that in appropriate

circumstances, even amendments of the plaint, after the commencement of the trial could be entertained. Here, it has to be seen that the factual

matrixes involved in the cases cited by the learned Counsel for the respondent are entirely different from this case. The precedents are to be cited

in consimili casu.

In State of Madhya Pradesh Vs. Union of India And Another reported in (2011)12 SCC 268, the Honourable Apex Court clearly and

categorically pointed out that the plaintiff cannot seek to get amended the plaint by way of incorporating a prayer which would be antithetical to the

earlier prayer in the plaint. The Honourable Apex Court remarked that the suit itself filed so as to get certain rights asserted within the frame work

of Central enactment. Subsequently, the amendment was sought to challenge the very vires of the Central enactment.

With regard to the concept of due negligence, the learned Counsel for the respondent cited the decision of Honourable Apex Court in J.

Samuel and Others Vs. Gattu Mahesh and Others,

A mere running of the eye over the said decision would clearly make the point clear that in the said decision, the concept of due diligence is

found set out supra. However, in view of the facts and circumstances involved in this case as set out supra, even by phantamagorical thoughts, the

first item of proposed amendment cannot be denied.

The decision rendered in J.R. Arun Kumar and Others Vs. K. Boopalan, is entirely on a different set of facts. The plaintiff earlier filed one suit

and in that, title was denied and despite that, in the subsequent suit also he did not choose to get incorporated a prayer for declaration of title.

However, at the belated stage, he wanted to incorporate the prayer for declaration his title and in those circumstances, this Court held that there

was no diligence on the part of the petitioner/plaintiff in seeking such amendment. Here, the admitted narration of facts as cited supra, would

exemplify and demonstrate that the mother executed unilaterally the cancellation of the gift deed and to that effect there are already averments in

the plaint also.

Wherefore, even when there is no prayer for getting declared the said unilateral cancellation deed of the gift deed by the mother, the present

suit with the prayers for declaration of title and for injunction itself would be much more sufficient. In the suit for declaration of plaintiff''s title, the

prayer for declaration of the cancellation deed as void is quite implied. Only for the purpose of better clarity, the plaintiff has chosen to seek for

such additional declaration as above over which there could be no dispute at all.

Hence, I am of the considered view that the order passed by the lower Court has to be set aside to the extent in not permitting the plaintiff to

get incorporated in the plaint the first item of proposed amendment for getting the cancellation deed declared as null and void and to that much

extent alone, the said I.A. shall stand allowed.

Accordingly, this Civil Revision Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed. No costs. On hearing

the pronouncement of the order, the learned Counsel for the Respondent would make an extempore submission that a time frame may be fixed to

the lower Court to dispose of the suit itself, as the respondent is an octogenarian lady. Wherefore, the lower Court is directed to dispose of the suit

itself within a period of four months, from the date of receipt of a copy of this order.

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